Opinion
October 22, 1908.
John J. Kenney [ Frank H. Innes with him on the brief], for the appellant.
Warren C. Van Slyke [ George M. Pinney, Jr., with him on the brief], for the respondent.
Present — WOODWARD, JENKS, HOOKER, GAYNOR and RICH, JJ.
The action is for negligence, in that the defendant carelessly permitted one of its street cars to run down a child on the street and inflict physical injury. At the time of the accident the car was being operated by an eighteen-year old boy, the son of the superintendent of the defendant, in its employ as a clerk. The car's regular motorman was also on the front platform. The principal question in the case arises upon the receipt in evidence, over the defendant's objection and exception, of a rule of the defendant company that motormen must not permit any persons on the front platform except certain designated officials, of whom the clerk was not one, and that motormen must not allow others to operate their cars except students when under instruction, which the clerk was not. The defendant urges that the introduction of this evidence was error, because the rule required a higher degree of care upon the part of the motorman than the law imposed upon the company itself, and the plaintiff, from her tender years, could neither have known nor relied upon that rule. The admission of the evidence was proper, both on principle and authority. The purpose of the adoption of the rule was to insure safe and careful operation of the cars of the defendant, that no injury might be done the equipment to the loss of the defendant, the motorman's employer; that those being carried in the car might not be injured, and thus avoid harm to the passengers, and that lawful users of the street might not suffer collision and thus avoid injuries to third parties. The law adopts a certain standard of conduct in such cases, namely, that the motorman shall exercise that degree of care and caution which an ordinarily prudent person would under similar circumstances. That the defendant, the motorman's master, has adopted for his guidance a higher standard of conduct is material in an action against the master who promulgated the rule by one who has been injured by reason of its violation, for the motorman's violation of the rule showed in this case a negligent disregard of the duty under which he rested, to the master, to observe certain precautions enjoined by it for the purpose of avoiding just such accidents as occurred here. The motorman's negligence was an issue; whether he observed his master's instructions, as well as his legal obligation, in the discharge of his duty toward users of the highway, is not immaterial on that issue.
So, too, it has been held. In Stevens v. Boston El. Railway Co. ( 184 Mass. 476), where defendant's car ran into the plaintiff, the driver of a carriage, it was held that a rule of the defendant requiring the sounding of a gong when passing carriages and other vehicles was admissible to show negligence on the part of the motorman. The court said: "A rule made by a corporation for the guidance of its servants in matters affecting the safety of others is made in the performance of a duty, by a party that is called upon to consider methods, and determine how its business shall be conducted. Such a rule, made known to its servants, creates a duty of obedience as between the master and the servant, and disobedience of it by the servant is negligence as between the two. If such disobedience injuriously affects a third person, it is not to be assumed in favor of the master that the negligence was immaterial to the injured person, and that his rights were not affected by it. Rather ought it to be held an implication that there was a breach of duty towards him, as well as towards the master who prescribed the conduct that he thought necessary or desirable for protection in such cases. Against the proprietor of a business, the methods which he adopts for the protection of others are some evidence of what he thinks necessary or proper to insure their safety." It was likewise said in the same case that evidence of this character is somewhat analogous to proof of the violation of an ordinance or statute which, while not conclusive of the defendant's negligence, is always material.
The other questions presented have been examined, but we are not persuaded that any error was committed upon the trial which would warrant a reversal of the judgment.
The judgment and order appealed from must, therefore, be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.